Judge: Maurice A. Leiter, Case: 18STCV09373, Date: 2022-08-23 Tentative Ruling

Case Number: 18STCV09373    Hearing Date: August 23, 2022    Dept: 54

Hearing Date: August 23, 2022

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendants City of Inglewood and Mark Fronterotta

Responding Party: Plaintiffs Sean Reidy, Richard Parcella, Michael Jaen, Andrew Cohen and Jason Cantrell

T/R:     DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS GRANTED.

            DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

            The Court considers the moving papers, opposition, reply, and supplemental briefing.

BACKGROUND

On December 21, 2018, Plaintiffs Sean Reidy, Richard Parcella, Michael Jaen, Andrew Cohen and Jason Cantrell sued Defendants City of Inglewood and Mark Fronterotta, asserting causes of action for (1) racial discrimination in violation of FEHA; and (2) racial harassment in violation of FEHA.

Plaintiffs were employed as police officers in the Inglewood Police Department. On February 21, 2016, Plaintiffs responded to a call that two people, an African American man and African American woman, were non-responsive in a vehicle. Plaintiffs allege they saw a firearm in the woman’s lap. According to the complaint, when the occupants awoke, they ignored commands by the Incident Commander to keep their hands up. Plaintiffs allege both the occupants reached for the firearm. Plaintiffs shot and killed the occupants. Plaintiffs subsequently were fired; they claim in this lawsuit that the decision to fire them was substantially motivated by “their White race.”

ANALYSIS

Defendants City of Inglewood and Mark Fronterotta move for summary judgment of Plaintiffs’ complaint, or in the alternative, summary adjudication of Plaintiffs’ first and second causes of action and claim for punitive damages.

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. First Cause of Action for Racial Discrimination in Violation of FEHA

A plaintiff asserting a claim for discrimination must satisfy the requirements of the McDonnell Douglas test. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-55.)  Generally, the plaintiff must show that (1) plaintiff was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggests discriminatory motive. (See id. at 355.) 

Once the plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Id. at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.) 

If the defendant meets its burden, “the presumption of discrimination disappears.” (Id. at 356.) The plaintiff then must show that the defendant’s legitimate reason is merely pretext. (Id.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or the proffered reason was insufficient to motivate discharge.” (Id.) 

Where, as here, a defendant moves for summary judgment, the initial burden on summary judgment remains with the defendant at all stages of the McDonnell Douglas analysis. (McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309; King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 432.). The defendant first must show that under the undisputed material facts (1) one or more elements of plaintiff’s discrimination claim is without merit, or that (2) defendant’s action was based on legitimate, non-discriminatory factors. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.)  If the defendant shows a non-discriminatory basis for its decision, the burden shifts to the plaintiff “to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz v. Bechtel Nat. Inc. 24 Cal.4th at 357; emphasis in original.)

Defendants assert that Plaintiffs’ first claim fails because Defendants had a legitimate business reason to terminate Plaintiffs’ employment. As detailed in Defendants’ summary of facts, Plaintiffs were involved in an Officer Involved Shooting (OIS) on February 21, 2016, which resulted in the death of civilians Kisha Michael and Marquitan Sandlin. (UMF ¶¶ 1-118, 122-125.) Plaintiffs were the only officers at the scene who discharged their weapons. (UMF ¶ 128.) Internal Affairs investigated the incident and found that each Plaintiff violated the Inglewood Police Department’s policies regarding Competency and Use of Force. (UMF ¶¶ 26-118.)

Defendants show that Officer Cantrell shot from a position that created a risk of crossfire and placed other officers and/or bystanders in danger of being shot. (UMF ¶¶ 29-31.) Officer Cohen should have been in the “radio man” position; he incorrectly assumed that his position at the turret of the SWAT vehicle allowed him to use lethal force. (UMF ¶¶ 42-56.) Officer Jaen should have been the “radio man” in his police vehicle. He could have used, but failed to use, a less lethal weapon. (UMF ¶¶ 62-68.) Officer Parcella self-deployed as lethal cover, endangered bystanders and Michael from the position he shot Sandlin. He did not see Sandlin or Michael touch the firearm before shooting them with a buckshot shotgun. (UMF ¶¶ 72-97.) Officer Reidy failed to coordinate the responding units; he also placed bystanders at risk from his shooting position. (UMF ¶¶ 105-116.)

After the Internal Affairs investigation, Defendant Fronterotta, the Chief of Police, decided to terminate Plaintiffs’ employment. Defendants contend that this decision was based on Plaintiffs’ violations of the department’s policies and was not motivated by Plaintiffs’ race. (UMF ¶¶ 122-124.)

Based on the evidence presented, Defendants have met their initial burden of establishing that Plaintiffs were terminated for legitimate, nondiscriminatory reasons. The burden shifts to Plaintiffs to show a triable issue of fact that the reasons were pretextual.

In opposition, Plaintiffs dispute Defendants’ description of the OIS. (See e.g. Opp. UMF ¶ 7.) Plaintiffs say they tried several de-escalation techniques before using force and that both Sandlin and Michael reached for the loaded gun. (Id.) Plaintiffs argue their actions did not violate the department’s policies. (Id.)

As evidence of disparate treatment, Plaintiffs compare their terminations to the discipline of two Hispanic officers, Sergeants Islas and Jurado. Notices of Intent to Terminate were issued to the sergeants after the OIS. (Opp. UMF ¶ 7.) Plaintiffs assert that the sergeants were given a “career saving deal” in which they could avoid termination by taking a demotion. (Id.) Sergeant Jurado took the deal; Sergeant Islas appealed the NOI through the administrative process; he was reinstated as sergeant. (Id.) Plaintiffs argue they were not given the same deal as the sergeants because they are white.

Plaintiffs also contend that Inglewood Mayor James T. Butts was worried that Inglewood would lose its deal with the National Football League if Plaintiffs were not terminated. Plaintiffs cite the shooting of Michael Brown, an African American, by a white officer in Ferguson, Missouri as evidence of this claim.

Plaintiffs have failed to show a triable issue of fact on whether Defendants’ stated reasons for firing Plaintiffs were pretextual. Defendants have presented evidence that the Chief terminated Plaintiffs’ employment because they did not follow the department’s policies, which resulted in the shooting death of two civilians. Plaintiffs present no evidence that their race was a motivating factor in the Chief’s decision to terminate Plaintiffs.

Plaintiffs’ differing account of the OIS is insufficient for a jury to infer pretext. Even if a jury found that Plaintiffs’ description of the OIS was accurate, there remains no evidence from which the jury reasonably could infer discriminatory intent. As the California Supreme Court held in Guz, if a defendant’s reason for termination is nondiscriminatory, it need not be “wise or correct.” (Guz, supra, 24 Cal.4th at 358.) 

Plaintiffs claim of disparate treatment also fails. Sergeants Jurado and Islas were not “similarly situated” to Plaintiffs. They were of higher rank and did not discharge their weapons. (See Wills v. Superior Court (2011) 195 Cal.App.4th 143, 172 [Another employee is similarly situated if, among other things, he or she “‘engaged in the same conduct without any mitigating or distinguishing circumstances.’” (Citations omitted.)]

On June 15, 2022, the Court continued the hearing on this motion in response to Plaintiffs’ argument that documents disclosed through their upcoming Pitchess motions might be relevant to their summary judgment opposition. The Court subsequently granted the revised Pitchess motions, and internal personnel records were disclosed to Plaintiffs after the Court’s in camera review.

In their supplemental briefing on this motion, Plaintiffs assert that those documents show a reasonable jury could find that Sergeants Jurado and Islas were similarly situated to Plaintiffs. Jurado’s and Islas’s personnel files detail their respective supervisory failures during the OIS. Plaintiffs argue the sergeants contributed to the outcome of the OIS, so their situations were comparable to those of Plaintiffs.

This evidence does not change the analysis. Sergeants Jurado and Islas did not fire their weapons. They were a higher rank than Plaintiffs and have been police officers significantly longer. They were issued notices of termination that they successfully challenged administratively. They are not similarly situated to Plaintiffs.

Plaintiffs also cite to two 2014 OIS incidents that occurred before the one at issue here, one involving an African American officer and the other involving a Hispanic officer. In both incidents, suspects pointed guns directly at the officers at traffic stops and the suspects ultimately were unharmed. This does not establish a triable issue of fact on disparate treatment.

Lastly, Plaintiffs present no evidence showing that the shooting of Michael Brown or Inglewood’s arrangements with the NFL influenced Defendants’ decision to terminate Plaintiffs; those contentions are mere speculation.

Plaintiffs have not met their burden to establish a triable issue of fact as to discrimination.

B. Second Cause of Action for Racial Harassment in Violation of FEHA

The Fair Employment and Housing Act prohibition on harassment states: “It is an unlawful employment practice. . . .[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or person providing services pursuant to a contract.” (Govt. Code, § 12940(j)(1).)

A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1045, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (See id.)  

            Defendants argue that Plaintiffs’ claims for racial harassment fail because Plaintiffs have not alleged any incidents of harassment and Defendants terminated Plaintiffs’ employment for legitimate, nondiscriminatory reasons. As discussed, Defendants have met their burden to establish Defendants had legitimate reasons to terminate Plaintiffs.

In opposition, Plaintiffs argue that the issuance of the NOIs and subsequent terminations are evidence of a hostile work environment. Plaintiffs again do not provide evidence from which a jury reasonably could infer that the NOIs and/or terminations were motivated by Plaintiffs’ race. Plaintiffs have not established a triable issue of fact as to the claims for racial harassment.

C. Punitive Damages

            As Plaintiffs have failed to establish a triable issue of fact as to their substantive claims, there is no basis for punitive damages.

            Defendants’ motion for summary judgment is GRANTED.